Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations. (b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"): (i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law; (ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing; (iii) any insurance policies of BEA; (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed; (v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document; (vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement; (vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets. (viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed; (ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and (x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA. (c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Assumption of Liabilities and Obligations. (a) At the Closing, ATS shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Seller Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller and the Seller Subsidiaries under the BEA Seller Assumable Agreements, and (ii) all obligations and liabilities of BEA Seller and the Seller Subsidiaries with respect to the ownership and operation of the BEA Seller Assets and the conduct of the BEA Seller Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Seller Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA Seller or any of its Subsidiaries relating to any of the following matters (collectively, the "BEA Seller Nonassumed Obligations"):
(i) the ownership or operation of the BEA Seller Assets or the conduct of the BEA Seller Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Seller Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Seller Assumable Agreements relating to the period prior to the ClosingClosing Date;
(iii) any insurance policies of BEASeller or any of the Seller Subsidiaries;
(iv) those required to be disclosed in the BEA Seller Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Seller Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA Seller under this Agreement or of Seller or any of the Seller Subsidiaries under any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's the obligations, covenants, agreements or undertakings of Seller set forth in this Agreement or of Seller or any of the Seller Subsidiaries set forth in any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.Excluded Asset;
(viii) any obligation or liability with respect to capitalized lease obligations (except as otherwise provided in this Agreement) or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral DocumentDocument by Seller or any of the Seller Subsidiaries; and
(x) any Contract with between or among Seller and any Affiliate of BEASeller, other than those, if any, set forth in Section 2(b)(x) of the BEA Seller Disclosure Schedule. All BEA Seller Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained Anything in this Section or elsewhere in this Agreement to the contrarycontrary notwithstanding, except as set forth in the term "Seller Nonassumed Obligations" shall not include, and the term "Seller Assumed Obligations" shall include, any liability arising out of the transfer or assignment to ATS of, or the use or enjoyment of the benefits by ATS under, any Contract, Governmental Authorization or Private Authorization the transfer or assignment of which (according to Section 2.2(c) of the BEA Seller Disclosure Schedule) requires the consent of any Authority or other Person (collectively, all items of income and expense (including without limitation with respect to rentthe "Nonassignable Contracts"), utility chargesif ATS has, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except notified Seller in writing (an "Acceptance Notice") that Pro Ratable Taxes (ATS consents to the transfer or assignment of such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues Nonassignable Contract despite the failure or paid any such expenses inability of ATS and Seller to obtain the approval or charges which, consent of an Authority or other Person whose approval or consent is required pursuant to the terms hereofof such Nonassignable Contract, or elects to receive the benefits of such Nonassumable Contract, in either of which events, if the approval or consent of an Authority or other party Person applicable to transfer of such Nonassignable Contract is entitled required to or responsible for, it shall furnish the other party with be obtained as a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts condition to agree upon such items and other adjustments prior ATS' obligations at Closing pursuant to the Closing Date andprovisions of Section 6.1(a) or 6.2(d), in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend have waived such condition with respect to such Nonassignable Contract. With respect to any Nonassignable Contract for which the applicable consent of any Authority or modify other Person is not obtained prior to the indemnification provisions of Article 8 nor Termination Date and for which ATS does not timely deliver an Acceptance Notice as described in the preceding sentence, Seller and ATS shall enter into an agreement (the "Nonassignable Contracts Agreement"), pursuant to reallocate responsibility which (i) Seller or the applicable Seller Subsidiary will hold and, to the extent hereinafter provided, perform services thereunder for the matters set forth thereinaccount of ATS, and remit promptly to ATS all amounts received pursuant to the provisions of, all of the Nonassignable Contracts as to which the required approval or consent to the assignment or transfer of which was not obtained and as to which ATS has not delivered an Acceptance Notice, and (ii) ATS will agree to (A) perform, to the extent the same would not constitute a breach thereof or a constructive assignment thereof without consent (in which event Seller and the applicable Seller Subsidiary shall continue to perform), all services required to be performed under such Nonassignable Contracts, (B) reimburse Seller or the applicable Seller Subsidiary for all costs and expenses reasonably incurred pursuant to the Nonassignable Contracts Agreement and (C) indemnify and hold harmless Seller and the applicable Seller Subsidiary with respect to all actions taken by ATS thereto and all actions, if any, taken by Seller or the applicable Seller Subsidiary pursuant thereto other than those relating to the bad faith, gross negligence or willful misconduct of Seller or the applicable Seller Subsidiary or its officers, directors, stockholders or employees.
Appears in 2 contracts
Samples: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Assumption of Liabilities and Obligations. (a) At Subject to the Closingprovisions of paragraph 7, ATS as of the Closing Date, Broadcasting shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to a Station under the BEA Assumable AgreementsAssumed Contracts relating to the time period beginning on or arising out of events occurring on or after the Closing Date. Subject to the LMA, and (ii) all other obligations and liabilities of BEA with respect Seller, including, without limitation, (i) obligations or liabilities under any contract not included in the Assumed Contracts, (ii) obligations or liabilities under any Assumed Contract for which a consent to the ownership and operation assignment, if required, has not been obtained as of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however(iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date and (iv) any forfeiture, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume claim or become obligated to perform any debt, liability pending litigation or obligation of BEA proceeding relating to the business or operations of any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business Station prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEA.
(c) Notwithstanding anything contained Seller. Other than as specified in the first sentence of this Agreement paragraph 4, Buyer, directly or indirectly, shall assume no liabilities or obligations of Seller and shall not be liable therefor. If Buyer is liable by operation of law for liabilities of Seller not expressly assumed by Buyer, then Seller shall not be liable to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation Buyer with respect to rentsuch liabilities unless and to the extent Seller is liable to Buyer under Seller's indemnification obligations under paragraph 18. Xx. Xxxxxxx Xxxxxxx Page 5 January 16, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees1998
(b) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on On the Closing Date, with BEA entitled Broadcasting shall assume Seller's obligations under Trade Deals (hereinafter defined). The Trade Deals assumed by Broadcasting pursuant to and responsible for any such items on or the terms of this paragraph 4 shall be considered Assumed Contracts. "Trade Deals" means the exchanges prior to the Closing Date commencement of the LMA by a Station of its advertising time for goods or services, other than in connection with the licensing of programs and ATS entitled programming material. Schedule 4(b) sets forth a list of all the Trade Deals in effect as of the date hereof and the balance, in dollar value, of either Seller's obligations to the other party under such Trade Deals or the amount due Seller under such Trade Deals. The goods and responsible for any such items relating services to any subsequent period. For these purposes, Pro Ratable Taxes attributable be provided to a period that begins before and ends Broadcasting under the Trade Deals after the Closing Date shall will be treated on a "closing useful in connection with the operation of the books" basis as two partial periodsStations. All Trade Deals have been reduced in full to writing and Seller has made available to Buyer true and complete copies of each of such writings. Seller will enter into no Trade Deals, one ending at nor increase the close liability of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm Seller to be retained to review such items and other adjustments. The fees and other expenses assumed by Buyer at Closing under any Trade Deals, without the prior written consent of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinBuyer.
Appears in 2 contracts
Samples: Letter Agreement (Cumulus Media Inc), Letter Agreement (Cumulus Media Inc)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable Agreements, Licenses and (ii) all obligations and liabilities of BEA with respect the Assumed Contracts assumed by Buyer relating to the ownership and operation time period beginning on or arising out of the BEA Assets and the conduct of the BEA Business, events occurring on and or after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or incurred prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day performable in accordance with their terms after the Closing Date. All other obligations and liabilities of Seller, except including (i) obligations or liabilities under any contract not included in the Assumed Contracts, (ii) obligations or liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant relate to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments time period prior to the Closing Date andor arise out of events occurring prior to the Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the business or operations of any Station prior to the Closing Date (other than those to be performed in accordance with their terms after the Closing Date), shall remain and be the obligation and liability solely of Seller. Other than as specified in the first sentence of this Section 2.5, Buyer, directly or indirectly, shall assume no liabilities or obligations of Seller and shall not be liable therefor.
(b) Schedule 2.5(b) contains a list of all of the Trade Deals in effect as of March 31, 1997 and correctly sets forth the balance, in any eventdollar value, except as set forth in Section 2.2(cof either (i) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period Seller's obligations to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received under such Trade Deals (denoted by a minus on Schedule 2.5(b)) or expenses paid (ii) the amount due Seller under such Trade Deals (reflected as a positive on Schedule 2.5(b)). On the Closing Date, Buyer shall assume Seller's obligations under (i) the Trade Deals listed on Schedule 2.5(b) to the extent that the goods or services to be provided by the other party advertisers pursuant to such Trade Deals are solely used or useful in connection with the business or operations of any Station and not previously reimbursed or any other adjustment required (ii) all Trade Deals entered into by this SectionSeller between the date hereof and the Closing Date. Nothing contained in The Trade Deals assumed by Buyer pursuant to the terms of this Section 2.2(c2.5(b) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconsidered Assumed Contracts.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Capstar Broadcasting Partners Inc), Asset Purchase Agreement (Capstar Broadcasting Partners Inc)
Assumption of Liabilities and Obligations. As of the Closing Date, Buyer shall (a) At the Closing, ATS shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect the Seller under the Licenses and the Assumed Contracts insofar as they relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, time on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated arise out of events related to perform any debt, liability or obligation of BEA relating to any Buyer's ownership of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership Assets or its operation of the BEA Assets Station on or after the conduct of Closing Date and those relating to the BEA Business period prior to the Closing Datewhich Buyer agrees to assume pursuant to the prorations and adjustments and (b) shall pay that portion of the principal and interest due and payable following the Closing Date pursuant to the terms of the Credit Agreement dated as of December 29, 1995, among Whitxxxxx Xxxia, Inc. and its Affiliates, the several Lenders From Time to Time Parties thereto, CIBC Inc., as Documentation Agent, and Banque Paribas, as Administrative Agent that is allocable to the Station as set forth in Schedule 6.03 to the Credit Agreement. Buyer shall not assume any other obligations or liabilities of Seller, including without limitation Taxes(i) any obligations or liabilities under any Contract not included in the Assumed Contracts, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, (iii) any insurance policies claims or pending litigation or proceedings relating to the operation of BEA;
the Station prior to the Closing, (iv) those required to be disclosed any obligations or liabilities arising under agreements entered into other than in the BEA Disclosure Schedule which are not so disclosed or whichordinary course of business, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability obligation to any employee of the Station for severance benefits, vacation time, or obligation from or sick leave accrued prior to the Closing Date relating to breach any employee of any warranty Seller who is not employed or any misrepresentation offered employment by BEA under this Agreement Buyer within the 90-day adjustment period, or any Collateral Document;
(vi) any liability obligations or obligation from or relating to breach or violation liabilities caused by, arising out of, or failure to perform, resulting from any action or omission of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Paxson Communications Corp), Option Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect any Seller under the Licenses and the Assumed Contracts to the ownership extent that either (a) the obligations and operation liabilities relate to the time after the Effective Time or (b) Buyer received a Working Capital Credit therefor under Section 2.4(a) as a result of the BEA Assets proration of such obligations and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS liabilities. Buyer shall not assume and agree to payany other obligations or liabilities of any Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, liabilities under any Employment Arrangement of BEA Contract (including without limitation any obligation to any BEA Employee for severance benefitsfilm or programming license agreement) not included in the Assumed Contracts, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Effective Time except insofar as Buyer receives a Working Capital Credit therefor under Section 2.4(a), (iii) any insurance policies claims, litigation, or proceedings relating to the operation of BEA;
either Station prior to the Closing, whether asserted or filed before or after the Effective Time, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities of any Seller under any management incentive, if disclosedemployee pension, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation retirement, or liability will not be assumed;
other benefit plans, (v) any liability obligations or obligation from or relating to breach liabilities of any warranty or Seller under any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) any liability or obligation from or relating to breach or violation ofany employee of either Station for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation credit agreements, note purchase agreements, indentures, or liability relating to any asset of BEA not other financing arrangements, other than leases or agreements listed on Schedule 3.7 and included in the BEA Assets.
Assumed Contracts, (viii) any obligation agreements entered into other than in the ordinary course of business of either Station, or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxesobligations or liabilities caused by, feesarising out of, expenses or other amounts required to be paid by BEA pursuant resulting from any action or omission of any Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASellers.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At On the ClosingClosing Date, ATS subject to Section 2.5, Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): perform:
(i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect Seller under the Assigned Licenses and Assumed Contracts to the ownership extent that such liabilities and operation of obligations relate to the BEA Assets and the conduct of the BEA Business, period on and or after the Closing Date, and
(ii) all liabilities of Seller relating to the Business in the following categories, to the extent that such liabilities do not exceed, in the aggregate, $9,672,000:
(A) operating payables;
(B) inventory received – not invoiced;
(C) prepaid customer orders;
(D) gift certificates;
(E) vendor chargebacks;
(F) accrued sales taxes;
(G) accrued withholding and unemployment taxes;
(H) accrued salaries and bonuses;
(I) accrued annual leave; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligationsand
(J) deferred rent.
(b) ATS Buyer shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) any obligations or liabilities under any Contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing DateAssumed Contracts, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, except for obligations specifically described in Section 2.4(a), (iii) any insurance policies claims or pending litigation or proceedings relating to the operation of BEA;
the Business prior to the Closing (except for customer product returns in the ordinary course of business), (iv) those required except for obligations specifically described in Section 2.4(a), obligations or liabilities of Seller arising out of or relating to be disclosed the Assets, Seller’s activities, actions, or operation of the Business, or Seller’s use or ownership of the Assets prior to the Closing (except for customer product returns in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) ordinary course of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
business); (v) obligations or liabilities arising under financing arrangements, (vi) obligations or liabilities of Seller under any liability Employee Plan, Multiemployer Plan, Multiple Employer Plan, or collective bargaining agreement, (vii) except as specifically provided in Section 2.4(a), any obligation from to any employee of Seller for wages or salaries, (viii) except as specifically provided in Section 2.4(a), any obligation to any employee of Seller for severance benefits, vacation time, sick leave, or other benefits under any Compensation Arrangements or any obligation relating to workers’ compensation claims of employees of Seller, (ix) obligations or liabilities arising prior to the Closing under any state escheat laws, (x) except as specifically provided in Section 2.4(a), obligations or liabilities of Seller for Taxes, (xi) obligations or liabilities caused by, arising out of, resulting from, or relating to breach any action or omission of any warranty Seller prior to the Closing, whether or any misrepresentation by BEA under this Agreement not related to the operation of the Business or any Collateral Document;
Seller’s use or ownership of the Assets (viexcept for customer product returns in the ordinary course of business), or (xii) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease other obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid liabilities of Seller not described in Section 2.4(a). All obligations and liabilities of Seller not assumed by BEA Buyer pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations 2.4 shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained in this Agreement Seller shall reimburse Buyer to the contrary, except as set forth extent that the liabilities of Seller in the categories listed in Section 2.2(c2.4(a)(ii) that are actually paid by or on behalf of Buyer exceed $9,672,000. In accordance with the Transition Services Agreement, Seller may pay certain of the BEA Disclosure Schedule, all items of income and expense (including without limitation liabilities described in Section 2.4(a)(ii) on Buyer’s behalf in accordance with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from Buyer’s instructions. To the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for extent that Seller pays any such items liabilities on or prior Buyer’s behalf in accordance with Buyer’s instructions, and Buyer has not previously advanced funds to Buyer for the Closing Date and ATS entitled to and responsible payment of such liabilities, Buyer will reimburse Seller for any the amount of such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses liabilities paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinSeller on Buyer’s behalf.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At the Closing, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities Assumed Liabilities as of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS Buyer shall not be required to assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
following: (i) the ownership any obligations or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Dateliabilities under any Excluded Contract, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Effective Time, except insofar as a proration or adjustment therefor is made in favor of Buyer under Section 2.5(a), (iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from arising out of any litigation, proceeding or claim by any person or entity relating to breach the business or operations of any warranty of the Businesses or any misrepresentation by BEA under this Agreement of the Assets with respect to any events or any Collateral Document;
circumstances that occur or exist prior to the Effective Time relating to such Businesses or the Assets, (viiv) any liability credit agreements, note purchase agreements, indentures or obligation from or relating to breach or violation of, or failure to perform, other financing arrangements (other than any Assumed Contracts) of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
Seller and (viiv) any other obligation or liability of Seller that is not an Assumed Liability (including, without limitation, any increase in the Assumed Liabilities in violation of Section 2.7(c)). Buyer shall perform all obligations arising out of the Assets (including the Assumed Contracts and the Licenses) relating to any asset the period on or after the Effective Time. Seller shall retain all liabilities of BEA Seller not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid assumed by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEABuyer.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period parties acknowledge that begins before and ends after the Closing Date Effective Time, 14 9 Seller shall be treated on a "closing of not, by any voluntary act or omission, increase the books" basis Assumed Liabilities other than as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to permitted in accordance with the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for this Agreement, without the matters set forth thereinprior written consent of Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable Agreements, Licenses and (ii) all the Assumed Contracts assumed by Buyer relating to the time period beginning on or arising out of events occurring on or after the Closing Date. All other obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA BusinessSeller, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) obligations or liabilities under any contract not included in the ownership Assumed Contracts, (ii) obligations or operation liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the BEA Assets Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date or arise out of events occurring prior to the conduct Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the business or operations of the BEA Business any Station prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEASeller. Other than as specified in the first sentence of this Section 2.5, Buyer, directly or indirectly, shall assume no liabilities or obligations of Seller and shall not be liable therefor.
(cb) Notwithstanding anything contained Schedule 2.5(b) contains a list of all of the Trade Deals in effect as of the date of this Agreement and correctly sets forth the balance, in dollar value, of either (i) Seller's obligations to the contrary, except other party under such Trade Deals (denoted by a minus on Schedule 2.5(b)) or (ii) the amount due Seller under such Trade Deals (reflected as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, a positive on Schedule 2.5(b)). On the Closing Date, Buyer shall assume Seller's obligations under (i) the Trade Deals listed on Schedule 2.5(b) to the extent that the goods or services to be provided by the advertisers pursuant to such Trade Deals are solely used or useful in connection with BEA entitled to the business or operations of any Station and responsible for any such items on or prior to (ii) all Trade Deals entered into by Seller between the date hereof and the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposeswith the consent of Buyer; provided, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing however, if, as of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (the obligation of Seller for air time due another party pursuant to all Trade Deals to be assumed by Buyer exceeds $50,000 in the aggregate, then the amount of such as property Taxes) imposed on a periodic basis excess shall be allocated on considered a daily basispre-Closing Date operating expense of Seller that shall serve as a reduction of the Purchase Price in accordance with Section 2.4(a). If either party shall have received any such revenues or paid any such expenses or charges which, The Trade Deals assumed by Buyer pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in this Section 2.2(c2.5(b) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconsidered Assumed Contracts.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable Agreements, Licenses and (ii) all obligations and liabilities of BEA with respect the Assumed Contracts assumed by Buyer relating to the ownership and operation time period beginning on or arising out of the BEA Assets and the conduct of the BEA Business, events occurring on and or after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or incurred prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day performable in accordance with their terms after the Closing Date. All other obligations and liabilities of Seller, except including (i) obligations or liabilities under any contract not included in the Assumed Contracts, (ii) obligations or liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant relate to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments time period prior to the Closing Date andor arise out of events occurring prior to the Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the business or operations of any Station prior to the Closing Date (other than those to be performed in accordance with their terms after the Closing Date), shall remain and be the obligation and liability solely of Seller. Other than as specified in the first sentence of this Section 2.5, Buyer, directly or indirectly, shall assume no liabilities or obligations of Seller and shall not be liable therefor.
(b) Schedule 2.5(b) contains a list of all of the Trade Deals in effect as of March 31, 1997 and correctly sets forth the balance, in any eventdollar value, except as set forth in Section 2.2(cof either (i) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.Seller's obligations
Appears in 1 contract
Samples: Asset Purchase Agreement (Capstar Broadcasting Partners Inc)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable Agreements, Licenses and (ii) all the Assumed Contracts assumed by Buyer relating to the time period beginning on or arising out of events occurring on or after the Closing Date. All other obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA BusinessSeller, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) obligations or liabilities under any contract not included in the ownership Assumed Contracts, (ii) obligations or operation liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the BEA Assets Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date or arise out of events occurring prior to the conduct Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the business or operations of the BEA Business any Station, prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEASeller. Other than as specified herein, Buyer, directly or indirectly, shall assume no liabilities or obligations of any member of the Selling Group.
(cb) Notwithstanding anything contained Schedule 2.5(b) contains a list of all of the Trade Deals in this Agreement effect as of December 31, 1996 and correctly sets forth under the column entitled "balance" the balance, in dollar value, of either (i) the Seller's obligations to the contrary, except other party under each such Trade Deal (denoted by a minus on Schedule 2.5(b)) or (ii) the amount due (reflected as set forth in Section 2.2(ca positive number on Schedule 2.5(b)) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on Seller under such Trade Deal. On the Closing Date, Buyer shall assume Seller's obligations under (i) the Trade Deals listed on Schedule 2.5(b) to the extent that the goods or services to be provided by the advertisers pursuant to such Trade Deals are used or useful in connection with BEA entitled to the business or operations of any Station and responsible for any such items on or prior to (ii) all Trade Deals entered into by Seller between the date hereof and the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposeswith the consent of Buyer; provided, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing however, if, as of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes the obligation of Seller for air time due another party pursuant to all (such as property Taxesx) imposed on a periodic basis Trade Deals (other than Trade Deals involving media trades with television stations) to be assumed by Buyer exceeds $5,000 in the aggregate or (y) Trade Deals involving media trades with television stations to be assumed by Buyer exceeds $45,000 in the aggregate, then in each case the amount of the applicable excess shall be allocated on considered a daily basispre-Closing Date operating expense of Seller to be prorated in accordance with Section 2.4(a). If either party shall have received any such revenues or paid any such expenses or charges which, The Trade Deals assumed by Buyer pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in this Section 2.2(c2.5(b) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconsidered Assumed Contracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capstar Broadcasting Partners Inc)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable AgreementsLicenses and the Assumed Contracts assumed by Buyer relating to the time period beginning on or arising out of events occurring on or after the Closing Date, and (ii) all thereafter. All other obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA BusinessSeller, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) obligations or liabilities under any contract not included in the ownership Assumed Contracts, (ii) obligations or operation liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the BEA Assets Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date or arise out of events occurring prior to the conduct Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the business or operations of the BEA Business any Station prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will shall not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation assumed by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations Buyer and shall remain and be the obligations obligation and liabilities liability solely of BEASeller. Other than as specified in the first sentence of this Section 2.5, Buyer, directly or indirectly, shall assume no liabilities or obligations of Seller and shall not be liable therefor.
(cb) Notwithstanding anything contained Schedule 2.5(b) contains a list of all of the Trade Deals in this Agreement effect as of March 31, 1997 hereof and correctly sets forth the balance, in dollar value, of either (i) Seller's obligations to the contrary, except other party under such Trade Deals (denoted by a minus on Schedule 2.5(b)) or (ii) the amount due Seller under such Trade Deals (reflected as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, a positive on Schedule 2.5(b)). On the Closing Date, with BEA entitled to (i) Buyer shall assume Seller's obligations under (A) the Trade Deals listed on Schedule 2.5(b) and responsible for any such items on or prior to (B) all Trade Deals entered into by Seller between the date hereof and the Closing Date with the consent of Buyer in accordance with the provisions of this Agreement; and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes(ii) (A) if, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing as of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (the obligation of Seller for air time due another party or parties pursuant to all Trade Deals to be assumed by Buyer exceeds the balance, in dollar value, of the amount due Seller under such as property Taxes) imposed on a periodic basis Trade Deals, then the amount of such excess shall be allocated on considered a daily basispre-Closing Date operating expense of Seller that shall serve as a reduction of the Purchase Price in accordance with Section 2.4(a); and (B) if, as of the Closing Date, the balance of the obligation of the other party or parties for goods or services due Seller pursuant to all Trade Deals to be assumed by Buyer exceeds the obligation of Seller for air time, then the value of such excess shall serve as an increase to the Purchase Price in accordance with Section 2.4(a). If either party shall have received any such revenues or paid any such expenses or charges which, The Trade Deals assumed by Buyer pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in this Section 2.2(c2.5(b) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconsidered Assumed Contracts.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect Seller under the Licenses and the Assumed Contracts insofar as they relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, time on and after the Closing Date; provided, however, that notwithstanding and arise out of events related to Buyer's ownership of the foregoing, ATS Assets or its operation of the Station on or after the Closing Date. Buyer shall not assume and agree to payany other obligations or liabilities of Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) any obligations or liabilities under any Contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing DateAssumed Contracts, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, (iii) any insurance policies claims or pending litigation or proceedings relating to the construction or operation of BEA;
the Station prior to the Closing, (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities arising under capitalized leases or other financing agreements, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability obligations or obligation from or relating to breach liabilities arising under agreements entered into other than in the ordinary course of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
business, (vi) any liability obligations or obligation from liabilities of Seller under any employee pension, retirement, health and welfare or relating to breach other benefit plans or violation ofcollective bargaining agreements, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset employee of BEA not included in the BEA Assets.
Station for severance benefits, vacation time, or sick leave accrued prior to the Closing Date, or (viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) liabilities caused by, arising out of, or resulting from any Taxes, fees, expenses action or other amounts required to be paid by BEA pursuant omission of Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained Seller. At Closing, Seller shall retain all choses in this Agreement action listed on Schedule 2.2 hereto and subject to the contraryfollowing sentences, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or shall retain exclusive control over the conduct of litigation relating to such choses in action. Notwithstanding the BEA Business shall foregoing, Buyer and Seller acknowledge that Seller is conveying to Buyer plans and certain real property interests which Seller has in a site located in Bridgewater, Massachusetts (hereinafter, the "Bridgewater Site"). Seller has held a construction permit issued by the FCC for a 1,049-foot tower to be prorated located at the Bridgewater Site, and Seller believes that the site is suitable for such a tower and transmitter facility. However, the parties acknowledge that on September 10, 1996 11 Seller filed an amendment to that construction permit as of 12:01 a.m.described in Section 5.1 and Seller was denied certain local permits needed to construct the tower at the Bridgewater Site. Seller understands that Buyer may elect to proceed with plans to develop the Bridgewater Site as a tower site in the future, Eastern timeand that if Buyer so elects, on Buyer will need to obtain the local permits necessary to operate the Station from the Bridgewater Site. As a result, Seller hereby agrees to take at Buyer's expense prior to or following the Closing Dateany and all action that Buyer may reasonably request to assist Buyer in obtaining such local permits, with BEA entitled including, without limitation, naming Buyer as an additional plaintiff in the Bridgewater Site litigation, amending or adding a new claim to such litigation, diligently prosecuting any claims or appeals and/or taking any and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items all other actions relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable such litigation that Buyer may reasonably request in order to a period that begins before and ends after facilitate the Closing Date shall be treated on a "closing issuance of the books" basis local permits to Buyer as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such promptly as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Sectionpossible. Nothing contained herein shall prevent Buyer from pursuing any separate actions, claims or proceedings or take any and all other separate actions relating to the Bridgewater Site litigation that Buyer may want to pursue or take in its sole discretion; provided, however, that Buyer shall consult with Seller in advance concerning any such action to be taken by Buyer and shall promptly deliver to Seller copies of all pleadings and other submissions by Buyer to a court or other tribunal in connection with such action. Buyer shall not be required to assume any obligations or liabilities under any litigation as a result of this Section 2.2(c) is intended or paragraph and shall not be deemed required to amend or modify the indemnification provisions take any actions under any litigation as a result of Article 8 nor to reallocate responsibility for the matters set forth thereinthis paragraph.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect the Seller (i) under the Licenses and the Assumed Contracts insofar as they relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, time on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated arise out of events related to perform any debt, liability or obligation of BEA relating to any Buyer's ownership of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership Assets or its operation of the BEA Assets Station on or after the conduct Closing Date and (ii) for the expenses of the BEA Business Station relating to the period prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to Buyer receives a credit in its favor with respect thereto under Section 2.3(b). Buyer shall not assume any other obligations or existing on liabilities of Seller, including, without limitation, (i) any obligations or liabilities under any Contract not included in the Closing Date: products liabilityAssumed Contracts, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, (iii) any insurance policies claims or pending litigation or proceedings relating to the operation of BEA;
the Station prior to the Closing, (iv) those required to be disclosed any obligations or liabilities arising under agreements entered into other than in the BEA Disclosure Schedule which are not so disclosed or whichordinary course of business except to the extent such Contract is included among the Assumed Contracts, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability obligation to any employee of the Station for severance benefits, vacation time, or obligation from or sick leave accrued prior to the Closing Date relating to breach any employee of any warranty Seller who is not employed or any misrepresentation offered employment by BEA under this Agreement Buyer within the 90-day adjustment period, or any Collateral Document;
(vi) except as otherwise assumed pursuant to the terms of this Agreement, any liability obligations or obligation from or relating to breach or violation liabilities caused by, arising out of, or failure to perform, resulting from any action or omission of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Assumption of Liabilities and Obligations. (a) At Except as otherwise provided in Section 1.4(b), at and effective as of the Closing, ATS the Purchaser shall assume and agree to pay, discharge and perform perform, as appropriate, only the following liabilities and obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): Sellers:
(i) all liabilities and obligations of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect to the ownership and operation Sellers as of the BEA Assets and the conduct date of the BEA Business, on and after Balance Sheet (as such term is defined in Section 2.4 hereof) accrued or reserved against in the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following Balance Sheet to the extent same arise from Events occurring prior to reflected thereon and not paid or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period discharged prior to the Closing;
(ii) all liabilities and obligations of the Sellers arising in the ordinary course of business between the date of the Balance Sheet and the Closing which are not paid or discharged prior to the Closing to the extent accrued or reserved against on the Closing Date Balance Sheet (as such term is defined in Section 1.5(b) hereof);
(iii) any insurance policies all liabilities and obligations of BEAthe Sellers arising after the Closing in respect of the Commitments (other than the Capital Leases) set forth on Schedule 2.14 or not required to be disclosed thereon because of the term or amount involved;
(iv) all liabilities and obligations of the Sellers arising after the Closing Date in respect of the Real Property Leases;
(v) all liabilities and obligations of the Sellers arising after the Closing in respect of the Union Contract;
(vi) all accrued vacation attributable to Hired Employees to the extent accrued for on the Closing Date Balance Sheet and determined in accordance with Schedule 4.1(g), which schedule describes the amount owed to each Employee as of December 31, 2001 on an employee-by-employee basis and will be updated through the Closing Date (which updated Schedule will be delivered by the Sellers to the Purchaser promptly following the Closing, but in no event later than thirty (30) days after the Closing Date), and the amounts described in Section 4.1(h) with respect to commissions in accordance with the procedures described on Schedule 4.1(h); and
(vii) subject to the limitations and exceptions specified under Section 4.1(k), continuation health coverage as required under Part 6 of Subtitle B of Title I of ERISA with respect to any individual who is an Employee as of the Closing Date, or was an employee prior to the Closing Date, but does not become a Hired Employee (other than an Excluded Employee), provided that either (A) such continuation coverage was directly affected by the Closing, or (B) the qualifying event triggering such continuation coverage is the sale of assets effectuated by this Agreement.
(b) All of the liabilities expressly assumed by the Purchaser pursuant to Section 1.4(a) are referred to collectively as the "Assumed Liabilities." Except for the Assumed Liabilities, the Purchaser shall not assume, agree to pay, discharge or perform, as the case may be, by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any obligations or liabilities of any Seller or the Stockholders (including, without limitation, those required related to be disclosed the Business) of any kind, character or description whatsoever (the "Retained Liabilities"). Without limiting the foregoing, the following shall constitute Retained Liabilities:
(i) any bank and long term debt, including (A) the Sellers' obligations owed to Foothill Capital Corporation, which the Sellers shall satisfy at Closing, (B) all obligations reflected as long term debt on the Closing Date Balance Sheet, including the Capital Leases which the Sellers shall satisfy immediately prior to Closing and, with respect to which, the Sellers shall take all action necessary to obtain title to the equipment which is the subject of such Capital Leases;
(ii) any liability or obligation of the Sellers or the Business in connection with products distributed by the Business prior to the Closing except to the extent accrued or reserved against in the BEA Disclosure Schedule which are not so disclosed Closing Date Balance Sheet;
(iii) any liability or which, if disclosed, Section 2.2(b)(iv) obligation of the BEA Disclosure Schedule indicates that Sellers or the Business in respect of any claim, regardless of when made or asserted, which arises out of or is based upon the failure of any Seller to comply with any applicable federal, state, local or foreign law, ordinance, code, rule or regulation in connection with the operations of the Business prior to the Closing;
(iv) any liability or obligation of the Sellers or the Business in respect of any tort claim, regardless of when made or asserted, to the extent such liability or obligation relates to acts or liability will not be assumedomissions occurring prior to the Closing;
(v) any liability or obligation arising out of, resulting from or relating to breach (a) the presence, Release or threatened Release of any warranty Hazardous Materials existing as of or prior to the Closing at, from, in, to, on, or under any Site; (b) the transportation, treatment, storage, handling or disposal, or the arrangement for the transportation, treatment, storage, handling or disposal of any Hazardous Materials by or on behalf of the Business or the Sellers in connection with the Business or the Purchased Assets, any predecessors of the Business or the Sellers in connection with the Business or the Purchased Assets, or any misrepresentation entity currently or previously owned or controlled by BEA under this Agreement the Business or the Sellers in connection with the Business or any Collateral DocumentPurchased Assets to any off-Site location prior to the Closing; and (c) any violation or non-compliance with any Environmental Law or Environmental Permit prior to Closing by the Business or the Sellers in connection with the Business or the Purchased Assets, any predecessor of the Business or the Sellers in connection with the Business or the Purchased Assets, or any entities currently or previously owned or controlled by the Business or the Sellers in connection with the Business or the Purchased Assets;
(vi) any liability or obligation from of the Sellers or relating the Stockholders in respect of any income tax, incident to breach or violation of, arising as a consequence of the conduct of the Business prior to the Closing or failure to perform, any the consummation of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Documentand the transaction contemplated hereby, including without limitation Article 5 of this Agreementlimitation, any deferred or accrued income tax liability;
(vii) any obligation liabilities or liability relating obligations of the Sellers or the Business to any asset of BEA not the Sellers' current or former employees (except to the extent expressly included in Sections 1.4(a)(v), (vi) and (vii)), including without limitation any liabilities or obligations of the BEA AssetsSellers or the Business arising out of or regarding: (a) contributions due under, and/or any payments, benefits, or other items payable from, a Benefit Plan attributable to the Sellers' current or former employees; (b) agreements, contracts, or arrangements entered into with individual current or former employees of the Sellers (except with respect to the Foreign Employee Agreements as described in Section 4.1(d)) regarding continuing streams of payment, provision of benefits, reimbursement obligations, monthly pension arrangements, or any other item promised under such an agreement, contract, or arrangement, regardless of whether the affected employees become Hired Employees; provided that the Sellers shall be entitled to certain reimbursement for certain severance obligations of Sellers pursuant to Sections 4.1(i) and 4.1(j); (c) any obligations and responsibilities of the Sellers or the Business to the Sellers' current or former employees with respect to the Uniformed Services Employment and Reemployment Rights Act (other than with respect to Hired Employees), COBRA (other than with respect to Hired Employees) and The Workers Adjustment Retraining and Notification Act; (d) any incident or condition occurring prior to the Closing giving rise to a workers compensation claim or disability claim regardless of when reported; provided that the Sellers shall be entitled to certain reimbursement pursuant to Section 4.1(g); (e) any medical expense incurred by any employee of the Seller prior the Closing regardless of when reported; provided that the Sellers shall be entitled to certain reimbursement pursuant to Section 4.1(g); and (f) the Xxxxx x. Xxxxxx litigation described on Schedule 2.15.
(viii) any obligation liability of the Sellers or liability the Business arising in connection with respect to capitalized lease obligations or Indebtedness for Money Borrowedany of the Excluded Assets;
(ix) any Taxes, fees, expenses liability or obligation (including without limitation intercompany accounts) of any of the Sellers to any of the other amounts required to be paid by BEA pursuant Sellers or to the provisions of this Agreement Stockholders or any Collateral Document; andto their respective Affiliates;
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) liability or obligation of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets Sellers or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items arising on or prior to before the Closing Date in connection with the Real Property and ATS entitled to and responsible for the Real Property Leases; and
(xi) any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing liability or obligation of the books" basis as two partial periods, one ending at Sellers or the close Business in respect of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as claims set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinSchedule 2.15.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the Closing, ATS the LLC shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under Nordstrom or any Nordstrom Affiliate relating to (i) the BEA Assumable Agreements, and Assumed Working Capital Liabilities as of the close of business on the day immediately preceding the Closing Date; (ii) all obligations and liabilities of BEA with respect the Assumed Contracts assumed by the LLC relating to the ownership and operation time period beginning on or arising out of the BEA Assets and the conduct of the BEA Business, events occurring on and or after the Closing Date; provided, however(iii) commitments of Nordstrom or any Nordstrom Affiliate relating to the Business entered into in the ordinary course of business which are consistent with the past practice of Nordstrom or such Nordstrom Affiliate, to the extent such commitments relate to goods and services to be received by the LLC after the Closing Date and (iv) pending non-material worker's compensation claims, a case by a former employee who worked for the Business, and a non-material EEOC charge for age discrimination. Other than as specified in the first sentence of this Section 4.5(a), the LLC shall assume no liabilities or obligations of Nordstrom or such Nordstrom Affiliate as of the Closing Date that notwithstanding relate to the foregoing, ATS shall not assume and agree to pay, Business and shall not be obligated with respect to, the BEA Nonassumed Obligationsliable therefor.
(b) ATS shall not assume All other obligations and liabilities of Nordstrom or become obligated to perform any debt, liability or obligation of BEA Nordstrom Affiliate relating to any of the following matters (collectivelyBusiness, the "BEA Nonassumed Obligations"):
including (i) obligations or liabilities under any contract not included in the ownership Assumed Contracts, (ii) obligations or operation liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the BEA Assets Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date or arise out of events occurring prior to the conduct of Closing Date and (iv) any forfeiture, claim or pending litigation or proceeding relating to the BEA Business prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEANordstrom.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to the Agency under the BEA Assumable Agreements, and (ii) all Assumed Contracts assumed by Buyer relating to the time period beginning on or arising out of events occurring on or after the Closing Date. All other obligations and liabilities of BEA with respect to the ownership and operation of the BEA Assets and the conduct of the BEA BusinessSeller, on and after the Closing Date; provided, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) obligations or liabilities under any Contract not included in the ownership Assumed Contracts, (ii) obligations or operation liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the BEA Assets Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date or the conduct arise out of the BEA Business events occurring prior to the Closing Date, including without limitation Taxes(iv) any forfeiture, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation claim or pending litigation or proceeding relating to any BEA Employee for severance benefits, vacation time the business or sick leave), and any operations of the following to the extent same arise from Events occurring Agency prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability unpaid Taxes or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's Employee Benefit Plan obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEA.
(c) Notwithstanding anything contained in this Agreement to the contrarySeller; provided, except as set forth in Section 2.2(c) of the BEA Disclosure Schedulehowever, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business nothing herein shall be prorated construed to imply that any such liability is owed by Seller. Other than as specified in the first sentence of 12:01 a.m.this Section 2.6, Eastern timeBuyer, on the Closing Datedirectly or indirectly, with BEA entitled shall assume no liabilities or obligations of Seller and shall not be liable therefor. This Section 2.6 is not intended to and responsible for shall not benefit any such items on or prior to the Closing Date person other than Seller and ATS entitled to Buyer. Buyer and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties Seller shall use their best reasonable efforts to agree upon such items and other adjustments prior arrange for, to the Closing Date andextent permitted by Applicable Laws, in any event, except as set forth in Section 2.2(c) the transfer to or assumption by Buyer of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties account balances in Seller’s Flexible Spending Account Plan for calendar year 2004 of those employees of Seller who are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally hired by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this SectionBuyer. Nothing contained in this Section 2.2(c) is intended 2.6 shall create or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconstrued as creating any third party beneficiary right in any person.
Appears in 1 contract
Assumption of Liabilities and Obligations. (a) At On the ClosingClosing Date, ATS Buyer shall assume and agree undertake to pay, discharge discharge, and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under the BEA Assumable Agreements, and (ii) all obligations and liabilities of BEA with respect Seller (a) under the Governmental Permits and the Assumed Contracts insofar as they relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, time on and after the Closing Date; provided, however, and (b) that notwithstanding arise out of events related to Buyer's ownership of the Purchased Assets or its operation of the Station on or after the Closing Date. Notwithstanding the foregoing, ATS Buyer shall not assume and agree to payat any time any other obligations or liabilities of Seller, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume or become obligated to perform any debt, liability or obligation of BEA relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
including (i) any obligations or liabilities under any contract not included in the ownership or operation of the BEA Assets or the conduct of the BEA Business prior to the Closing DateAssumed Contracts, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements Assumed Contracts relating to the period prior to the Closing;
Closing Date, (iii) any insurance policies claims or pending litigation or proceedings relating to the operation by Seller of BEA;
the Station prior to the Closing (other than those claims referenced in Section 1.1(f)), (iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed any obligations or whichliabilities arising under capitalized leases or other financing agreements, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) except as provided in Section 5.3, any liability obligations or obligation from liabilities of Seller under any employee pension, retirement, health and welfare or relating to breach of any warranty other benefit plans or any misrepresentation by BEA under this Agreement or any Collateral Document;
collective bargaining agreements, (vi) except as provided in Sections 1.4(c) and 5.3, any liability or obligation from or relating of Seller to breach or violation ofany employee of the Station for severance benefits, vacation time, or failure sick leave accrued prior to performthe Closing Date, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) liabilities caused by, arising out of, or resulting from any Taxes, fees, expenses action or other amounts required to be paid by BEA pursuant omission of Seller prior to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEAClosing, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations and all such obligations and liabilities shall remain and be the obligations and liabilities solely of BEASeller.
(c) Notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaylord Entertainment Co)
Assumption of Liabilities and Obligations. (a) At As of the ClosingClosing Date and subject to the limitations set forth in this Section and Section 1.3 below, ATS Purchaser shall assume and agree to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA under set forth in Schedule 1.2(a) hereto (the BEA Assumable Agreements, and “Assumed Liabilities”) which shall include the following:
(iii) all obligations and liabilities of BEA with respect Seller under any service agreements and other Contracts, relating to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and time period after the Closing Date(the “Assumed Contract Liabilities”);
(ii) the SAP Current Liabilities (as defined in Section 1.6); provided, however, that notwithstanding the foregoing, ATS shall not assume and
(iii) those obligations and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligationsliabilities specifically set forth in Schedule 1.2(a) hereto.
(b) ATS Except for the Assumed Liabilities, Purchaser shall not assume or become obligated otherwise agree to pay, discharge or perform any debt, liability other liabilities or obligation obligations of BEA relating to any Seller in respect of the following matters SAP Practice of Seller (collectivelywhether accrued, the "BEA Nonassumed Obligations"):
(i) the ownership absolute, contingent or operation of the BEA Assets otherwise, whether or the conduct of the BEA Business prior not disputed, or whether or not disclosed to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leavePurchaser), and any the Transferred Assets shall be transferred, assigned and conveyed to Purchaser free and clear of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
all Encumbrances (ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations and liabilities solely of BEAAssumed Liabilities).
(c) Notwithstanding anything contained in this Agreement Seller shall remain responsible for the payment of those liabilities and obligations of Seller which relate to the contrary, except SAP Practice other than Assumed Liabilities.
(d) Except as set forth in Section 2.2(c) Schedule 1.2(d), Purchaser shall assume all warranty claims other than warranty claims for work performed and completed prior to Closing. Purchaser shall provide services on behalf of the BEA Disclosure Schedule, all items of income and expense (including without limitation Seller with respect to rent, utility charges, Pro Ratable Taxes any such warranty claims made for work performed and wages, salaries completed prior to Closing and accrued but unused vacation of BEA employees) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business in such event Seller shall be prorated as of 12:01 a.m., Eastern time, on the Closing Date, with BEA entitled to and responsible pay Purchaser at Purchaser’s standard warranty rates for any such items on or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth therein.services;
Appears in 1 contract
Samples: Asset Purchase Agreement (Technology Solutions Company)
Assumption of Liabilities and Obligations. (a) At Subject to the Closingprovisions of Section 7.9, ATS as of the Closing Date, Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of the obligations and liabilities of BEA Seller relating to each Station under the BEA Assumable AgreementsLicenses and the Assumed Contracts assumed by Buyer relating to the time period beginning on or arising out of events occurring on or after the Closing Date. Subject to the provisions of the LMA, and (ii) all other obligations and liabilities of BEA with respect Seller, including (i) obligations or liabilities under any contract not included in the Assumed Contracts, (ii) obligations or liabilities under any Assumed Contract for which a Consent, if required, has not been obtained as of the Closing, (iii) any obligations and liabilities arising under the Assumed Contracts that relate to the ownership and operation of the BEA Assets and the conduct of the BEA Business, on and after time period prior to the Closing Date; providedDate or arise out of events occurring prior to the Closing Date and (iv) any forfeiture, however, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume claim or become obligated to perform any debt, liability pending litigation or obligation of BEA proceeding relating to the business or operations of any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business Stations prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEASeller. Other than as specified in the first sentence of this Section 2.5, Buyer shall assume no liabilities or obligations of Seller and shall not be liable therefor.
(cb) Notwithstanding anything contained Schedule 2.5(b) contains a list of all of the Trade Deals in this Agreement effect as of October 31, 1996 and correctly sets forth the balance, in dollar value, of either (i) the Seller's obligations to the contrary, except other party under each such Trade Deal (reflected as set forth in Section 2.2(ca negative balance on Schedule 2.5(b)) of or (ii) the BEA Disclosure Schedule, all items of income and expense amount due (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employeesreflected as a positive balance on Schedule 2.5(b)) arising from the ownership or operation of the BEA Assets or the conduct of the BEA Business shall be prorated as of 12:01 a.m., Eastern time, on Seller under such Trade Deal. On the Closing Date, Buyer shall assume the Trade Deals listed on Schedule 2.5(b) and Seller's obligations under (A) the Trade Deals listed on Schedule 2.5(b) to the extent that the goods or services to be provided by the advertisers pursuant to such Trade Deals are solely used or useful in connection with BEA entitled to the business or operations of any Station and responsible for any such items on or prior to (B) all Trade Deals entered into by Seller between the date hereof and the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposeswith the consent of Buyer; provided, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing however, if, as of the books" basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (the obligation of Seller for air time due another party pursuant to all Trade Deals to be assumed by Buyer exceeds $100,000 in the aggregate, then the amount of such as property Taxes) imposed on a periodic basis excess shall be allocated on considered a daily basispre-Closing Date operating expense of Seller that shall serve as a reduction of the Purchase Price in accordance with Section 2.4(a). If either party shall have received any such revenues or paid any such expenses or charges which, The Trade Deals assumed by Buyer pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in this Section 2.2(c2.5(b) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinconsidered Assumed Contracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capstar Broadcasting Partners Inc)
Assumption of Liabilities and Obligations. (a) At Subject to the Closing----------------------------------------- provisions of Paragraph 7, ATS as of the Closing Date, Buyer shall assume and agree undertake to pay, discharge and perform the following obligations and liabilities of BEA (collectively, the "BEA Assumed Obligations"): (i) all of only the obligations and liabilities of BEA Seller under the BEA Assumable Agreements, and (ii) all Assumed Contracts relating to the time period beginning on or arising out of events occurring on or after the Closing Date. All other obligations and liabilities of BEA with respect Seller, including, but not limited to (i) obligations or liabilities under any contract not included in the ownership and operation Assumed Contracts, (ii) obligations or liabilities under any Assumed Contract for which a consent to assignment, if required, has not been obtained as of the BEA Assets and the conduct of the BEA Business, on and after the Closing Date; provided, however(iii) any obligations and liabilities arising under the Assumed Contracts that relate to the time period prior to the Closing Date and (iv) any forfeiture, that notwithstanding the foregoing, ATS shall not assume and agree to pay, and shall not be obligated with respect to, the BEA Nonassumed Obligations.
(b) ATS shall not assume claim or become obligated to perform any debt, liability pending litigation or obligation of BEA proceeding relating to any of the following matters (collectively, the "BEA Nonassumed Obligations"):
(i) the ownership or operation of the BEA Assets or the conduct of the BEA Business Seller prior to the Closing Date, including without limitation Taxes, unfunded pension costs, any Employment Arrangement of BEA (including without limitation any obligation to any BEA Employee for severance benefits, vacation time or sick leave), and any of the following to the extent same arise from Events occurring prior to or existing on the Closing Date: products liability, Legal Actions or other Claims, and obligations and liabilities relating to Environmental Law;
(ii) any obligations or liabilities under the BEA Assumable Agreements relating to the period prior to the Closing;
(iii) any insurance policies of BEA;
(iv) those required to be disclosed in the BEA Disclosure Schedule which are not so disclosed or which, if disclosed, Section 2.2(b)(iv) of the BEA Disclosure Schedule indicates that such obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of any warranty or any misrepresentation by BEA under this Agreement or any Collateral Document;
(vi) any liability or obligation from or relating to breach or violation of, or failure to perform, any of BEA's obligations, covenants, agreements or undertakings set forth in this Agreement or any Collateral Document, including without limitation Article 5 of this Agreement;
(vii) any obligation or liability relating to any asset of BEA not included in the BEA Assets.
(viii) any obligation or liability with respect to capitalized lease obligations or Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be paid by BEA pursuant to the provisions of this Agreement or any Collateral Document; and
(x) any Contract with any Affiliate of BEA, other than those, if any, set forth in Section 2(b)(x) of the BEA Disclosure Schedule. All BEA Nonassumed Obligations shall remain and be the obligations obligation and liabilities liability solely of BEA.
(c) Notwithstanding Seller. Other than as specified in the first sentence of this Paragraph 4, notwithstanding anything contained in this Agreement to the contrary, except as set forth in Section 2.2(c) Buyer does not assume or agree to pay, directly or indirectly, satisfy, discharge or perform, and will not be deemed by virtue of the BEA Disclosure Scheduleexecution and delivery of this Agreement or any document delivered at the execution of this Agreement, all items of income and expense (including without limitation with respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but unused vacation of BEA employees) arising from the ownership or operation as a result of the BEA Assets or the conduct consummation of the BEA Business shall be prorated as of 12:01 a.m.transactions contemplated by this Agreement, Eastern timeto have agreed to pay, on the Closing Datesatisfy, with BEA entitled to and responsible for discharge or perform, any such items on liability or prior to the Closing Date and ATS entitled to and responsible for any such items relating to any subsequent period. For these purposes, Pro Ratable Taxes attributable to a period that begins before and ends after the Closing Date shall be treated on a "closing obligation of the books" basis as two partial periods, one ending at Seller other than the close of the Closing Date and the other beginning on the day after the Closing Date, except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis. If either party shall have received any such revenues or paid any such expenses or charges which, pursuant to the terms hereof, the other party is entitled to or responsible for, it shall furnish the other party with a detailed statement of any such items as soon as practicable after receipt or payment thereof. The parties shall use their best efforts to agree upon such items and other adjustments prior to the Closing Date and, in any event, except as set forth in Section 2.2(c) of the BEA Disclosure Schedule, within sixty (60) days thereafter. If the parties are unable within such period to agree upon such items and other adjustments, BEA and ATS shall, within the following ten (10) days, jointly designate a nationally known independent public accounting firm to be retained to review such items and other adjustments. The fees and other expenses of retaining such independent public accounting firm shall be borne equally by BEA and ATS. Such firm shall report its conclusions as to such items and other adjustments pursuant to this Section and such report shall be conclusive on all parties to this Agreement and not subject to dispute or review. Upon such agreement or determination by such independent accounting firm, BEA or ATS, as the case may be, shall promptly reimburse the other party for any income received or expenses paid by the other party and not previously reimbursed or any other adjustment required by this Section. Nothing contained in this Section 2.2(c) is intended or shall be deemed to amend or modify the indemnification provisions of Article 8 nor to reallocate responsibility for the matters set forth thereinAssumed Contracts.
Appears in 1 contract
